Friday, March 25, 2011

The Coalition and Mandatory Sentencing

Who will prevail in the battle between liberals and “rednecks”?

In each election in New South Wales since 1999, the Coalition has promised a policy of mandatory sentencing in relation to one or more offences. In 1999, the Opposition spokesman on Legal Affairs, John Hannaford, proposed a form of grid sentencing.

In 2003, the Coalition went to the election promising mandatory minimum sentences for a range of offences including murder in the first and second degree, murder of a police officer, gang rape and some commercial drug offences.

It was reported that the original policy, drawn up by Shadow Legal Affairs spokesman Chris Hartcher, had also included mandatory sentences for property offences, and that a split in Shadow Cabinet had developed over the proposals.

A leaked document made its’ way into government hands, and it was revealed that Opposition front bencher, Brad Hazzard, had led the argument against mandatory minimums, and for the proposition that judicial discretion in sentencing should be maintained.

In the end, Opposition Leader John Brogden went to the 2003 election with a modified proposal that did not include property offences, but nonetheless would have required courts to impose, for example, 25 year minimum sentences for first degree murder, and life imprisonment for the murder of a police officer. These laws would have permitted no judicial discretion to impose a sentence that was appropriate to the facts of the offence or the offender.

In 2005, Brogden had again proposed to take mandatory sentencing to the next election, only to lose the Opposition leadership in disgrace. The new leader, Peter Debnam, picked up the baton and maintained the policy of mandatory life for the murder of a police officer, with Hartcher again putting forward proposals to end 'soft' jail terms and introduce a new system of sentencing for violent criminals.

Arriving as a new MP in 2007, former Deputy Director of Public Prosecutions Greg Smith became the new Shadow Attorney General. In that role, Smith has repeatedly stated his determination to take Coalition policy in a very different direction to his predecessors. In 2009, he told the Australian’s Chris Merritt:

"I have (Liberal Party) support for the view that the law-and-order auction should not be continued in the next election."

He said his colleagues in the state opposition "did not take a lot of convincing" to abandon the law-and-order auction and embrace the need for more effective rehabilitation of prisoners:

"The Liberal Party are supportive of this line, as are people who I have spoken to in the community.”

Smith went on to say: "I know there are still rednecks out there that want mandatory sentencing and matters of that sort," before emphasizing his priority to reduce the growing budget devoted to imprisonment.

Despite these comments, and what would appear to be a denunciation of mandatory sentencing by Smith, the Coalition have not abandoned their policy to introduce mandatory life for the murder of a police officer.

We already know what such an amendment might look like, care of a 2007 private members bill, introduced by NSW’s next Police Minister, Mike Gallacher, but defeated in the Legislative Council.

The proposed amendment was as follows:

19B Compulsory life sentences for murder of police officers

1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder of a police officer if the murder was committed:

(a) While in the execution of the police officer's duty, or

(b) As a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of the officer's duty.

2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person's natural life.

3) This section applies to a person who is convicted of murder of a police officer only if the person was of or above the age of 18 years at the time the murder was committed.

4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (of any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence.

5) Nothing in this section affects the prerogative of mercy.

In the Second Reading Speech, Gallacher referred to his own background in the Police Force, and the deaths of David Carty and Glenn McEnallay, both officers murdered in the execution of their duty. The bill was strongly supported by the NSW Police Association, as well as the parents of Carty and McEnally.

Interestingly, the second reading speech referred to the case of Taufahema, a co-accused in the murder of McEnallay, who drove the vehicle being pursued by Police, and in which the shooter was a passenger.

Taufahema’s murder conviction was quashed on appeal to the CCA, on the basis of certain principles of accessorial liability, and he was acquitted of the charge. Notwithstanding that the shooter, Penisini, was convicted of murder and sentenced to 34 years, with a 23 year non parole period, McEnallay’s family and the Police Association were outraged by Taufahema’s acquittal.

Although this result had nothing to do with the adequacy or otherwise of sentencing, and concerned principles that most people (including criminal lawyers) do not understand, Gallacher was not deterred:

"The community and the Opposition—and certainly Glenn McEnallay's parents—believe the driver of the car involved was implicated in the murder and should have stayed in jail for the murder of Glenn. The cases of those involved in the murders of David Carty and Glenn McEnallay highlight the soft stance taken in New South Wales against people who murder police officers. This bill is another step in providing a higher level of protection for police."

It would appear this policy has remained something of an article of faith for some members of the Coalition, and like other matters of faith, resistant to reasoned argument. And as the following part of the second reading speech reveals, Gallacher’s understanding of the effect of the amendment and the removal of judicial discretion was, at least in 2007, questionable:

“One member referred to it as a simple bill. It is a shame that the simpleton did not read this so-called simple bill. The Hon. Lynda Voltz spoke about her big issue with this legislation. In fact, it was her only issue in the contribution she made some time ago. She said:

The question that comes to my mind is: If this sentence is mandatory, is there no situation that we can see where a judge should hear the case and give some weight to the decision?

Should we not ask the judge to look at the situation?

Had she bothered to read the bill she would have seen that in relation to the compulsory life sentence for the murder of police officers—new section 19B—it says:

Nothing in this section affects the prerogative of mercy.

In other words, the very issue that she hung out as the only one that was causing her not to vote for this bill is that we are denying judges the ability to use their prerogative with regard to mercy."

It is not known whether there will be a further debate within the party over this policy, or the position that Greg Smith will take. His previous statements appear not to favour mandatory sentencing, yet he has not spoken publicly against this proposal. Requests made to his office this week to clarify his position have not been answered.

Those in the criminal law world might remember that Mr Smith prosecuted the brothers Gilbert and Richard Adam for the murder of Constable David Carty in 1998, and then went on to appear in the appeals in the CCA and High Court. One wonders what that experience had on the formation of his attitude to this policy.

What we do know is that this bill will resurface at some stage. Whether the so-called “rednecks” prevail over the small-l liberals of the Coalition remains to be seen.

In 2000 the then PM John Howard said:

“As a matter of principle, I do not agree with mandatory sentencing. I agree with strong sentencing laws, but in the end I do think these matters ought to be determined by judges and magistrates.”

Can we expect the Liberal Party to follow the lead of their patriarch, and stand up for the principle of judical discretion in sentencing? And will this issue give us any line on O'Farrell, and his reputation as a moderate?

Depending on where the Upper House votes fall tomorrow, the answers to these questions may not be too far away.